The defendant has offered a defense
to the charge of murder against (him/her). The defendant claims, and has
offered evidence in support of that claim, that at the time of the incident
giving rise to this charge, (he/she) was acting under the influence of extreme
emotional disturbance for which there was a reasonable explanation or excuse.

This defense is called an affirmative
defense. The burden of proving extreme emotional disturbance by a preponderance
of the evidence is on the defendant. The state does not have the burden of
proving the nonexistence of this defense. Nor does this defense serve to negate
intent, but rather it is raised to establish circumstances that mitigate
culpability. In other words, a person charged with murder may raise this
defense to lessen the charge from murder to manslaughter in the first degree.

To determine whether the defendant
has established the affirmative defense of extreme emotional disturbance by a
preponderance of the evidence, you must find: 1) that the defendant was exposed
to extremely unusual and overwhelming stress; and 2) that the defendant had an
extreme emotional reaction to it, as a result of which there was a loss of
self-control, and reason was overborne by extreme intense feelings, such as
passion, anger, distress, grief, excessive agitation or other similar emotions.
You should consider whether the intensity of these feelings was such that the
defendant's usual intellectual controls failed and the normal rational thinking
for that individual no longer prevailed at the time of the act.

It is your responsibility as the
trier of fact to decide to what extent, if any, the defendant's emotions
governed (his/her) conduct at the time of the death of <insert name of
decedent>. In reaching that decision you may consider all the feelings
which you find, in fact, influenced the defendant's conduct, for example,
passion, anger, distress, grief, resentment, fright, hatred, excessive
agitation, or other similar emotions.1
While the emotional disturbance need not necessarily have been a spontaneous or
sudden occurrence, and indeed, may have "simmered" in the defendant's mind for a
long period of time,2
the disturbance must actually have influenced (his/her) conduct at the time of
the killing.3

If you find that the defendant acted
under the influence of emotional disturbance, then you must consider whether
such emotional disturbance was extreme. The word "extreme" refers to the
greatest degree of intensity away from the normal state of the defendant.4
Any emotional disturbance must have been so severe and intense that although
intending to cause death, the defendant was so overwhelmed that the defendant's
usual intellectual controls failed and that (his/her) normal rational thinking
no longer prevailed at the time of the death of <insert name of decedent>.

If you find the defendant acted under
the influence of emotional disturbance and that it was extreme, you must then
consider whether there was a reasonable explanation or excuse for such
disturbance. In determining the reasonableness of a defendant's explanation or
excuse, you must measure the reasonableness from the viewpoint of a reasonable
person in the defendant's situation, under the circumstances as the defendant
believed them to be.

As stated earlier, extreme emotional
disturbance is an affirmative defense and the burden is upon the defendant to
prove the elements of this defense by a preponderance of the evidence.5
<See
Affirmative Defense, Instruction 2.9-1.>

If you find that the defendant has
sustained (his/her) burden of proving the defense of extreme emotional distress
by a preponderance of the evidence, then you shall find (him/her) not guilty of
murder. Furthermore, if you also find that the state has proved beyond a
reasonable doubt that the defendant intended to cause the death of <insert
name of decedent>, and that (his/her) actions did proximately cause the
death of <insert name of decedent>, but under circumstances that do not
constitute murder because (he/she) was acting under the influence of extreme
emotional disturbance, you shall find the defendant guilty of manslaughter in
the first degree. Finally, if you find that the defendant has not sustained
(his/her) burden of proving this defense by a preponderance of the evidence,
then you will reject the defense and determine whether the state has proved the
elements of murder beyond a reasonable doubt.
_______________________________________________________

3
See State v. Kaddah, supra, 250 Conn. 578 n.14 (this instruction
adequately conveyed that the emotional disturbance need not be linked to a
specific event, and did not require the defendant's requested instruction that
explicitly said that the victim need not be the cause of it).

5
In Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281
(1977), the U.S. Supreme Court held that it was not unconstitutional to place
the burden of proving this defense on the defendant because it "does not serve
to negate intent, but rather is raised to establish circumstances that mitigate
culpability." See State v. Elliott, supra, 177 Conn. 6.

Commentary

The seminal case on this defense
is State v. Elliott, supra, 177 Conn. 1. The Court described the
adoption of the defense by the Model Penal Code as a considerable expansion from
the common-law "heat of passion" or "sudden provocation" defense. "A homicide
influenced by an extreme emotional disturbance, in contrast, is not one which is
necessarily committed in the 'hot blood' stage, but rather one that was brought
about by a significant mental trauma that caused the defendant to brood for a
long period of time and then react violently, seemingly without provocation."
Id., 7-8. While extreme emotional disturbance should not be limited by a "heat
of passion" instruction, nothing precludes "a trier from finding a hot blood
homicide to have occurred under extreme emotional disturbance." State v.
Asherman, 193 Conn. 695, 734 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct.
1749, 84 L.Ed.2d 814 (1985). See also State v. Reid, 193 Conn. 646,
660-61 n.16 (1984) ("trial courts should not give the heat of passion
instruction when charging the jury on the affirmative defense of extreme
emotional distress.); but see State v. Casey, 201 Conn. 174, 181 (1986),
in which the defendant requested an instruction contrasting extreme emotional
disturbance to the heat of passion. The Court found that under the
circumstances of the case and the use by the state in its closing argument of a
"classic 'heat of passion' scenario" to discount the extremity of the
defendant's reaction, it was prejudicial error for the trial court not to
instruct as requested.

When defendant is
entitled to the instruction"[A] defendant is entitled to a
requested instruction on the affirmative defense of extreme emotional
disturbance only if there is sufficient evidence for a rational juror to find
that all the elements of the defense are established by a preponderance of the
evidence." State v. Person, 236 Conn. 342, 353 (1996) (distinguishing
"any evidence" standard applicable to general defenses from "sufficient
evidence" standard applicable to affirmative defenses).

The defense "may be raised either
by the defendant by way of an affirmative defense or by the state where it is
warranted by the evidence." State v. Asherman, supra, 193 Conn. 731.
"The fact that the defendant may rely on the mitigating circumstance as an
affirmative defense to murder does not mean that by his contrary election he may
also circumscribe the homicide offenses which the jury may consider." Id.,
732. Even if the defendant testifies that (he/she) was not upset, (he/she) is
entitled to the instruction if there is sufficient evidence to warrant it.
State v. Person, supra, 236 Conn. 350.

Standard of
reasonablenessThe reasonableness of the
explanation or excuse is not to be determined from the viewpoint of the
defendant, but rather, from the viewpoint of a reasonable person in the
defendant's situation under the circumstances as the defendant believed them to
be. State v. Raguseo, 225 Conn. 114, 126-28 (1993); State v. Ortiz,
217 Conn. 648, 651-58 (1991).

"[T]he defense does not require a
provoking or triggering event; or that the homicidal act occur immediately after
the cause or causes of the defendant's extreme emotional disturbance; or that
the defendant have lost all ability to reason. Further, the reasonable man
yardstick is only used to determine the reasonableness of the explanation or
excuse of the action of the defendant from the viewpoint of a person in the
defendant's situation under the circumstances as the defendant believed them to
be. Thus, the statute sets forth a standard that is objective in its overview,
but subjective as to the defendant's belief." State v. Elliott, supra,
177 Conn. 7.

The Court in Elliott then
set forth guidelines to apply in determining whether the defendant has proved
the affirmative defense of an extreme emotional disturbance. "[T]he jury must
find that: (a) the emotional disturbance is not a mental disease or defect that
rises to the level of insanity as defined by the Penal Code; (b) the defendant
was exposed to an extremely unusual and overwhelming state, that is, not mere
annoyance or unhappiness; and (c) the defendant had an extreme emotional
reaction to it, as of which there was a loss of self-control, and reason was
overborne by extreme intense feelings, such as passion, anger, distress, grief,
excessive agitation or other similar emotions. Consideration is given to
whether the intensity of these feelings was such that his usual intellectual
controls failed and the normal rational thinking for that individual no longer
prevailed at the time of the act." Id., 9-10.

Note that many cases refer to
these guidelines as the "elements" of the defense. See, e.g., see State v.
Blades, 225 Conn. 609, 628 (1993), State v. D'Antuono, 186 Conn. 414,
420 (1982); State v. Zdanis, 182 Conn. 388, 390-91 (1980), cert. denied,
450 U.S. 1003, 101 S.Ct. 1715, 68 L.Ed.2d 207 (1981). The Supreme Court, in
State v. Forrest, 216 Conn. 139, 148 (1990), stated that this was a
mischaracterization of the discussion in Elliot. "Section 53a-54a
describes the two elements of that defense as: (1) the defendant committed the
offense under the influence of extreme emotional disturbance; and (2) there was
a reasonable explanation or excuse for the defendant's extreme emotional
disturbance. When we adopted the three criteria set forth in Elliott, we
did not rewrite § 53a-54a, nor did we substitute our own 'elements' for those
specified by the legislature. We merely interpreted the meaning of the phrase
'extreme emotional disturbance,' and . . . enumerated 'understandable
guidelines' for 'instructing a jury' in determining the presence or absence of
that mental condition. . . . These guidelines also serve to focus the
presentation of evidence on three factual bases that we have deemed essential to
support the inference that a defendant suffered from extreme emotional
disturbance at a particular time." (Citations omitted.) Id., 148; see also
State v. Person, supra, 236 Conn. 351.

The Supreme Court has consistently
rejected defendants' arguments that the inquiry into the reasonableness of the
defendant's beliefs should be from the defendant's viewpoint rather than a
reasonable person in the defendant's situation. "If the reasonableness of the
explanation or excuse for a defendant's extreme emotional disturbance were
determined by ascertaining whether the disturbance was reasonable to him, his
subjective scheme of moral values would become a consideration in the
'reasonableness' inquiry, a result plainly not intended by the drafters [of the
Model Penal Code]. Such an approach would also eliminate the barrier against
debilitating individualization of the standard that the drafters intended to
create by requiring that the explanation or excuse for a defendant's extreme
emotional disturbance be reasonable." (Internal quotation marks omitted.)
State v. Ortiz, supra, 217 Conn. 656-57; see also State v. Dehaney,
261 Conn. 336, 368-71 (2002), cert. denied, 537 U.S, 1217, 123 S.Ct. 1318, 154
L.Ed.2d 1070 (2003) (defendant requested an instruction that "the jury must
consider not only the factual situation in which the defendant found himself,
but also his unique mental and emotional characteristics and the impact of those
factors on his perception of the circumstances").